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DENNIS KOLLENBORN
State Bar No. 43928
150 Almaden Boulevard
Suite 950
San Jose, California 95113
Telephone: (408) 286-2221
Attorney for Petitioner
Julie T. Nguyen
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
JULIE T. NGUYEN,
Vv.
Petitioner,
LITTLE ORCHARD BUSINESS PARK
OWNERS ASSOCIATION,
Respondent.
Action No. 17CV317898
POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION FOR
ATTORNEYS FEES AND COSTS
Date: July 19, 2019
Time 9:00 A.M.
Dept: 10
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTSTABLE OF CONTENTS
NO BASIS FOR CONTRACTUAL FEES ASSERTED IN THE UNDERLYING
PROCEEDING ..... 00... cece cette e eee e nee eee
THE PROVISION IN THE DECLARATION DOES NOT SUPPORT
THE FEES REQUESTED ...... 6... teen eens
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS,SO mem ND WH BF WwW WY
TABLE OF AUTHORITIES
Cases
Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co.
(1996) 47 Cal. App. 4th 464, 491-492, 54 Cal. Rptr. 2d 888,904 ...................
Bermudez v. Ciolek
(2015) 237 Cal. App. 4th 1311, 1337, 188 Cal. Rptr. 3d 820, 841. ..............0..
Boggs v. North American B. & M. Co.
(1937) 20 Cal.App.2d 316, 319, 66 P.2d 1253 6... eects
Carwash of America-PO v. Windswept Ventures No. |
(2002) 97 Cal.App.4th 540, 543-544 [118 Cal. Rptr. 2d 536] ................0 00a
Casella v. SouthWest Dealer Services, Inc.
(2007)157 Cal. App. 4th 1127, 1162, 69 Cal. Rptr. 3d 445,47 «2.0.2... eee eee
Copenbarger v. Morris Cerullo World Evangelism, Inc.
(2018) 29 Cal. App. 5th 1, 13, 239 Cal. Rptr. 3d 838, 848 6.0.0... eee eee
Cruz v Ayromloo
(2007) 155 CA4th 1270 2... n eens
Fairchild v. Park
(2001) 90 Cal.App.4th 919, 930-931 [109 Cal. Rptr. 2d 442 .......... 0.0...
First Nationwide Bank v. Mountain Cascade, Inc.
(2000) 77 Cal.App.4th 871, 878 [92 Cal. Rptr.2d 145] 2.0... .. eee eee eee
Gorman v. Tassajara Development Corp.
(2009) 178 Cal.App.4th 44, 87, 100 Cal. Rptr. 3d 152 2.0.0... eee
Greenfield v. Superior Court
(2003) 106 Cal.App.4th 743, 748 [131 Cal. Rptr. 2d 179] (Greenfield) ...............
Hsu v. Semiconductor Systems, Inc.
(2005) 126 Cal. App. 4th 1330, 1341-1342, 25 Cal. Rptr. 3d 82, 90-91...............
In re Leanna W.
(2004) 120 Cal.App.4th 735, 743, 15 Cal. Rptr. 3d 616 2.0.0.0... 0... cece eee ee
Johnsone v Siegel
(2000) 84 CA4th 1087 26... e eee e ee een anne
Josephson v. Sup.
(1963) 219 Cal. App: 3d 354, 361-362, 33 Cal.Rptr.196...................0000.
Marriage of Nassimi
(2016) 3 Cal. App. Sth 667, 698, 207 Cal. Rptr. 3d 764... 0... eee eee
Matter of Application of Clark
(1914) 24 Cal.App. 389, 394-395 [141 P. 831 26...
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS
iiMelnyk v. Robledo
(1976) 64 CA3d 618, 623, 134 CR 602 ©... cette 11
Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co.
(1968) 69 Cal.2d 33, 43, 69 Cal. Rptr. 561.0... eee eee 9
People v. American Sur. Ins. Co.
(1999) 75 Cal.App.4th 719, 726, 89 Cal.Rptr.2d 422,427 .......... 0... cee eee 2
People v. Yartz
(2005) 37 Cal.4th 529, 538 [36 Cal. Rptr. 3d 328, 123 P.3d 604] (Yartz).............. 7
Ripley v. Pappadopoulos
(1994) 23 Cal. App. 4th 1616, 1627, 28 Cal. Rptr. 2d 878, 884 ................05. 3,4
Robert L. Cloud & Associates, Inc. v. Mikesell [*1281]
(1999) 69 Cal.App.4th 1141, 1153-1154, 82 Cal. Rptr. 2d 143 .....0. 2... eee 3
Roden v. Amerisource Bergen Corp.
(2007) 155 Cal. App. 4th 1548, 1578, 67 Cal. Rptr. 3d 26.0.0... .. eee eee 8
Salawy v. Ocean Towers Housing Corp.
(2004) 121 Cal.App.4th 664, 673 [17 Cal. Rptr. 3d 427] ............... cee eee 7
Sanchez v Hillerich & Bradsby Co.
(2002) 104 CA4th 73, 720, 128 CR2d 529.1... ete 10
Santisas v. Goodin
(1998) 17 Cal.4th 599, 615, 71 Cal. Rptr. 2d 830, 951 P.2d 399 ........ eee 5
Stockwell v. Lindeman
(1964) 229 Cal. App. 2d 750, 755, 40 Cal. Rptr. 555, 558.6... eee 7
Statutes
Civil Code
ADIT cece e tenes 1,3, 5,7
ATA7(D)(1) cece e ent eee teen eens 1
Code of Civil Procedure
2M sci are eG LRT EEE HERE uw ewe em ewe em eee eee em ema 6,7
22 gic sccm om nie nin mie ete He min OO CD EMO EEN OEM EM EEE O EES 6
23 nee ee ee ee teen eens 6,7
BF oon i 16 E dE AE BEE AM HE RE ARORA PRT H ASEM EME REE IIR Ewin oemimens 7
25 simu te eR ETE Ma Re TEM Ra em E aA Em OMe meme meme em ememem ene aes 7
1010 een nee b ene cnet eens 2
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS iii1033.5 (b) occ cent teen e eens
Corporation Code
W271) eee eee e es
V2TA(D) cece eee eee bebe beeen ees
T2TA(C) ccc eee eee eee eee eee e ees
VTA) cece eee eee ccc cece eee e ees
1561(a)(1) eee cece eee e ee eeeeeeeeees
Rules of Court
B.1110(8) occ cece cee eeteveeeeteveeeeteeeteereees
BAM2G) occ c cece cect cece vee eveeeeseeveeerees
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTSSCO em ND HW PB Ww NY
BACKGROUND
Petitioner Julie T. Nguyen is the owner of certain real property located at 1859 Little
Orchard St, San Jose, California 95125-1034, Santa Clara County, Assessor's Parcel Number
455-40-020, Legal Description: Lot Number: 2; Subdivision: Little Orchard Business Park; Unit:
5A; TRACT: 7849; City/Muni/Twnsp: San Jose; Map: Or J692 pg 1217 (hereafter referred to
as “the 1859 Little Orchard St Street Property” or “the Unit”). In turn, that certain real property
is a unit identified on the plan in a commercial common interest/condominium development
(hereafter referred to as “the Property”) governed by an association.
Respondent Little Orchard Business Park Owners Association, is a California non-profit
mutual benefit corporation and the governing body of the association (hereafter referred to as
“the Association’).
Petitioner Julie T. Nguyen presented a Petition for writ of mandate seeking to obtain
records from Respondent Little Orchard Business Park Owners Association.
The Court denied the writ.
Respondent seeks attorney fees and expenses under the CCRs, which Respondent
asserts to include,
8.1 Enforcement: The Association, or any owner, shall have the right
to enforce, by any proceeding at law or in equity, all restrictions, conditions,
covenants, reservations, liens, and charges now or hereafter imposed by the
provisions of this Declaration, the Articles and the Bylaws, and in such action
shall be entitled to recover reasonable attorneys' fees as are ordered by Court.
Failure by the Association or by any owner to enforce any covenant or restriction
herein contained shall in no event be deemed a waiver of the right to do so
thereafter.
THE PRESENTED MOTION
The motion seeks an order awarding fees and costs in the amount of $25,040.50,
purportedly pursuant to Civil Code Section 1717 and Code of Civil Procedure Section 1033.5.
The Court, on notice and motion by a party, may determine who is the party prevailing
on the contract, whether or not the suit proceeds to final judgment. Civ. Code §1717(b)(1);
Rule 3.1702 also requires a determination of the prevailing party.
I
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 1oO mem ND HW BF WN
CCP § 1010 and Rule 3.1110(a) require a notice of motion to state what is being sought
in by way of the motion, “If new matter were permitted in the actual hearing of the motion, a
notice of motion would be reduced to little purpose other than to advise the time and place of
hearing.” Josephson v. Sup. Ct. (1963) 219 Cal.App.2d 354, 361-362, 33 Cal.Rptr. 196.
The notice of motion must state in the first paragraph exactly what relief is sought and
why. CCP § 1010; CRC 3.1110(a); see People v. American Sur. Ins. Co. (1999) 75
Cal.App.4th 719, 726, 89 Cal.Rptr.2d 422, 427. The motion must contain the following: identity
of the party or parties bringing the motion; identity of the parties to whom it is addressed; a brief
statement of the basis for the motion and the relief sought. CRC 3.1112(d).
The motion does not specify as to whom the fees and costs are sought against.
The motion states that the motion is made upon the grounds that Respondent is a
prevailing party. However, this is apparently assumed, as the motion does not seek to have
Respondent be found a prevailing party.
NO BASIS FOR CONTRACTUAL FEES
ASSERTED IN THE UNDERLYING PROCEEDING
As noted above, the matter proceeded as a Petition for Writ of Mandate.
The prayer for the petition included, “2. For attorney's fees pursuant to Corporations
Code 8331 and 8337;” The Petition did not seek contractual attorneys fees.
No answer to the Petition was ever filed."
"A party on whom an alternative writ or notice of motion has been served may make a return by
demurrer, verified answer, or both. See Code Civ. Proc. §§1089, 1105.
Points and Authorities or “ an unverified legal brief” is not the required response. Agricultural
Labor Relations Bd. v. Superior Court, Agricultural Labor Relations Bd. v. Superior Court (2016) 4 Cal.
App. Sth 675, 682, 209 Cal. Rptr. 3d 243.
The submission of “a return with a verified answer or demurrer is not a technicality, but is an
integral and critical step in the procedure for determining the merit of a petition for extraordinary relief.”
Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1085, 151 Cal. Rptr. 3d 526.
If the return does not properly controvert the Petition, as here, all facts plead in the petition are
accepted as true. Agricultural Labor Relations Bd. v. Superior Court, supra; Dorsey v. Superior Court
(2015) 241 Cal. App. 4th 583, 589, 193 Cal. Rptr. 3d 834; Bank of America, N.A. v. Superior Court
(2013) 212 Cal. App. 4th 1076, 1084-1085, 151 Cal. Rptr. 3d 526; Caliber Bodyworks, Inc. v. Superior
Court (2005) 134 Cal. App. 4th 365, 372 n.5, 36 Cal. Rptr. 3d 31; see also Witkin Civil Procedure 5" ed,
Extraordinary Writs, Section 195.
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 2The CC&R provision, “Section 8.1 Enforcement,” at issue was never presented to the
Court until the present motion was filed.
While it is true that a fees motion under Section 1717 is presented post judgment as a
form of a cost, the matter must still have been “on a contract, where the contract specifically
provides that attorney's fees and costs...” See Cal Civ Code § 1717.
A matter cannot be “on a contract, where the contract specifically provides that
attorney’s fees and costs...” that was never presented in any form during the course of the
matter, attached to any pleading or proved up during the course of the matter. Arntz
Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal. App. 4th 464, 491-492, 54
Cal. Rptr. 2d 888, 904; Ripley v. Pappadopoulos (1994) 23 Cal. App. 4th 1616, 1627, 28 Cal.
Rptr. 2d 878, 884.
Recovery of costs provided by contract must be specially pleaded and
proven at trial, and not awarded posttrial as was done here. (Arntz, supra, 47
Cal.App.4th at p. 491; First Nationwide Bank v. Mountain Cascade, Inc. (2000)
77 Cal.App.4th 871, 878-879 [92 Cal. Rptr. 2d 145].) “[T]he proper interpretation
of a contractual agreement for shifting litigation costs is a question of fact that
‘turns on the intentions of the contracting parties.’ ” (First Nationwide Bank,
supra, at p. 879.) Accordingly, “the issue must be submitted to the trier of fact for
resolution pursuant to a prejudgment evidentiary proceeding, not a summary
postjudgment motion.” (Ibid.) Hsu v. Semiconductor Systems, Inc. (2005) 126
Cal. App. 4th 1330, 1341-1342, 25 Cal. Rptr. 3d 82, 90-91.
THE MOTION IMPROPERLY SEEKS COSTS AND EXPENSES
The attachment to the motion includes a claim of $722.00 expenses incurred for a
reporters transcript of the court hearing of 1-3-2019, as well as FedEx charges of $2.60 and
efiling fees of $63.00
There is a distinction between fees, costs and expenses.
Fees may be claimed if allowed by contract, as discussed elsewhere.
Expenses may be claimed if allowed by contract. Carwash of America-PO v. Windswept
Ventures No. | (2002) 97 Cal.App.4th 540, 543-544 [118 Cal. Rptr. 2d 536]; Fairchild v. Park
(2001) 90 Cal.App.4th 919, 930-931 [109 Cal. Rptr. 2d 442]; First Nationwide Bank v.
Mountain Cascade, Inc. (2000) 77 Cal.App.4th 871, 878 [92 Cal. Rptr. 2d 145]; Robert L. Cloud
& Associates, Inc. v. Mikesell [*1281] (1999) 69 Cal.App.4th 1141, 1153-1154, 82 Cal. Rptr.
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 32d 143; Ripley v. Pappadopoulos, supra, 23 Cal.App.4th at pp. 1622-1628.
Costs may be claimed if allowed by statute under CCP Section 1033.5, and maybe if
allowed by contract.”
The provision at issue does not provide for expenses or costs.
To the extent Movant seeks costs, this motion is untimely and the wrong procedure.
Rule 3.1700 is entitled “Prejudgment costs.” Rule 3.1700(a)(1), which addresses “[t]rial
costs,” states that “[a] prevailing party who claims costs must serve and file a memorandum
of costs” within 15 days after notice of entry of judgment, or within 180 days after entry of
judgment, whichever is first. Rule 3.1700(b) establishes a procedure for contesting those costs
by means of a motion to tax costs. See Rule 3.1700(b)(1).
Neither subdivision (b) nor subdivision (c) of Rule 3.1702 mentions a memorandum of
costs. The sole express reference to a memorandum of costs in rule 3.1702 appears in
subdivision (e), addressing “Attorney's fees fixed by formula”: “If a party is entitled to statutory
or contractual attorney's fees that are fixed without the necessity of a court determination, the
fees must be claimed in the memorandum of costs.”
Moreover, hearing transcripts cannot be claimed as costs unless the transcripts were
ordered by the Court. Cal Code Civ Proc § 1033.5 (b) includes, ...”The following items are not
allowable as costs, except when expressly authorized by law:...(5) Transcripts of court
proceedings not ordered by the court.”
NO EFFORT TO DISTINGUISH CLAIMS
There are two issues as to the nature of the claims presented.
First, the Court needs to determine if a contract claim was presented, and if so, an
allocation would be required.
> There is a split as to whether costs can be claimed if allowed by contract, but not under CCP
Section 1033.5. See Bussey v. Affleck (1990) 225 Cal. App. 3d 1162, 1164 [275 Cal. Rptr. 646] [Fees
of experts could be awarded under a contract providing for an award of " ‘all costs and expenses of
collection including reasonable attorneys' fees.'"]; but see Ripley v. Papadopoulos (1994) 23 Cal. App.
4th 1616, 1626-1627 [28 Cal. Rptr. 2d 878] [disagreeing with Bussey and holding that a general contract
provision for recovery of attorney fees and costs must be construed in light of Code of Civil Procedure
section 1033.5].
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 4Cm NDA HW RF BN
NN NY N YN N NN DY
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Movant does not address either of these issues.
The matter proceeded upon a Petition for Writ of Mandate.
The Petition sought “1. The court issue an order compelling Respondent Little Orchard
Business Park Owners Association to make available to Petitioner in written form, for inspection
and the making of extracts therefrom: The Articles and Bylaws (original and as amended to
date); The membership register, accounting books and records and minutes of proceedings
of the members and the board and committees of the board; The record of all the members’
names, addresses and voting rights; 2. For attorney's fees pursuant to Corporations Code
8331 and 8337;”
The allegations include that “Respondent Little Orchard Business Park Owners
Association is at least subject to certain governing documents including, inter alia, a Little
Orchard Business Park Enabling Declaration recorded at Santa Clara County Recorders Office
on May 15, 1986 as Document Number 8784174, attached hereto as EXHIBIT A (hereafter
referred to as “the Declaration” or “CC&Rs”), as corrected and amended and Bylaws, attached
hereto as EXHIBIT B (hereafter referred to asthe Bylaws”) as well as the laws of the State of
California governing non-profit mutual benefit corporations and common interest/condominium
developments.”
However, the presented Bylaws have not been authenticated, and the enabling
declaration makes no reference to obligations to produce records.
The moving Points and Authorities, and the responsive Points and Authorities, principally
addressed inspection rights under the Corp. Code including under §§8330, 8333, and 7160.
The Points and Authorities also referred the Bylaws, however, the Bylaws do not provide for
the same expansive rights as under the Corporation Code, and do not include rights as to all
of the records sought by the Petition.
A critical limitation to the recovery of fees and costs under Section 1717 is that it
normally pertains only to contract claims. "If an action asserts both contract and tort or other
noncontract claims, section 1717 applies only to attorney fees incurred to litigate the contract
claims. [Citation.]" Santisas v. Goodin (1998) 17 Cal.4th 599, 615, 71 Cal. Rptr. 2d 830, 951
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 5P.2d 399.
The language of the provision at issue here is not expansive and allows for fees only for
enforcement of the contract documents. The provision does include recognized expansive
language such as “arising out of” of “in connection with.” See Johnsone v Siegel (2000) 84
CA4th 1087, Cruz v Ayromloo (2007) 155 CA4th 1270.
There is no assertion by Movant that the legal theories were so intertwined that it would
be impracticable, if not impossible, to separate the attorney's time into compensable and
noncompensable units. Instead, the issue is simply ignored
As such, the motion fails for making no effort to allocate what may be provided for under
the CC&RS and what is not provided for.
THE PROVISION IN THE DECLARATION
DOES NOT SUPPORT THE FEES REQUESTED
As noted above, the provision at issue provides,
8.1 Enforcement: The Association, or any owner, shall have the right to
enforce, by any proceeding at law or in equity, all restrictions, conditions,
covenants, reservations, liens, and charges now or hereafter imposed by the
provisions of this Declaration, the Articles and the Bylaws, and in such action
shall be entitled to recover reasonable attorneys' fees as are ordered by Court.
Failure by the Association or by any owner to enforce any covenant or restriction
herein contained shall in no event be deemed a waiver of the right to do so
thereafter.
The provision at issue starts narrowly with allowance for enforcement by way of any
proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and
charges now or hereafter imposed by the provisions of this Declaration, the Articles and the
Bylaws, and also allows even more narrowly for fees in such “action.” See Casella _v.
SouthWest Dealer Services, Inc. (2007)157 Cal. App. 4th 1127, 1162, 69 Cal. Rptr. 3d 445,
47. Allowing for fees in an action is more limited that the language allowing for enforcement
in any proceeding at law or in equity.
A mandate proceeding is not an “action.”
All court matters are divided into actions and special proceedings. Code Civ. Proc., §§
21, 22, 23.
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 6Som ND HW BF WN
Amandate is a “special proceeding, i.e., a proceeding authorized by statute that affords
new rights and remedies that may be judicially enforced, but that is neither an action at law nor
a suit in equity. Code Civ. Proc., §§ 21, 23; Greenfield v. Superior Court (2003) 106
Cal.App.4th 743, 748 [131 Cal. Rptr. 2d 179] (Greenfield); Boggs v. North American B. & M.
Co. (1937) 20 Cal.App.2d 316, 319, 66 P.2d 1253.
The more specific term “civil action,” has the same meaning as “civil suit.” People v.
Yartz (2005) 37 Cal.4th 529, 538 [36 Cal. Rptr. 3d 328, 123 P.3d 604] (Yartz). An action refers
to an action that arises out of an obligation or an injury and is prosecuted for the first or second
purpose listed in Code of Civil Procedure section 22, but not for the third purpose. Code Civ.
Proc., §§ 24, 25; see Matter of Application of Clark (1914) 24 Cal. App. 389, 394-395 [141 P.
831. Thus, the term “civil action” “covers the following: (1) [S]uits at law or in equity. [Citation.]
(2) Certain adversary proceedings that take place during a probate proceeding. [Citation.]
(3) Actions for declaratory relief. [Citations.] (4) Actions for divorce (dissolution of marriage).
[Citation.].”” Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 673 [17 Cal.
Rptr. 3d 427].
The provision at issue does not include special proceedings as to fees.
In addition, the relevant provision includes “...and in such action shall be entitled to
recover reasonable attorneys' fees as are ordered by Court.” This is not the same thing as
“and in such action shall be entitled to recover reasonable attorneys' fees.” The inclusion of
the additional fees “as are ordered by Court” modifies the provision such that the provision is
not mandatory. The added language does not fix any obligation, and, instead, to the contrary,
such fees are only to be payable if the court so decides to order them. In effect, the term
states that whatever the Court may order is acceptable. See Stockwell v. Lindeman (1964) 229
Cal. App. 2d 750, 755, 40 Cal. Rptr. 555, 558 (Similar language in loan agreement).
MOVANT IS NOT A PREVAILING PARTY
CC §1717 includes,
"(b)(1) The court, upon notice and motion by a party, shall determine who is the
party prevailing on the contract for purposes of this section, whether or not the
suit proceeds to final judgment. Except as provided in paragraph (2), the party
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 7SFO mem IN DH FB WN
12
14
prevailing on the contract shall be the party who recovered a greater relief in the
action on the contract. The court may also determine that there is no party
prevailing on the contract for purposes of this section.
Among other things, the Court has discretion to determine that neither party prevailed.
Marriage of Nassimi (2016) 3 Cal. App. 5th 667, 698, 207 Cal. Rptr. 3d 764.
When a contract does not define “prevailing party,” the Court may base its attorney's
fees decision on pragmatic definition of extent to which each party realized litigation objectives,
or whether, on balance, neither party prevailed sufficiently to justify an attorney’s fees award
Roden v. Amerisource Bergen Corp. (2007) 155 Cal. App. 4th 1548, 1578, 67 Cal. Rptr. 3d 26.
First, as noted above, Movant does not seek any determination to be a prevailing party.
The sole nod as to the issue, is a single conclusionary sentence in the moving points
that Respondent opposed the Petition and that the court ruled in Respondent's favor [Points
and Authorities pg 3, line 12].
No Statement of Decision was requested or issued.
The Judgment includes that the Court finds there was “insufficient showing that the
respondent had refused to produce documents that existed or which were in the possession
of the respondent.”
In fact, extensive evidence was presented by Petitioner that a series of inspections were
requested and thwarted. At the conclusion of the series of inspections, a large number of
records either required by law and/or expected to exist, were never made available for
inspection. This included substantial gaps in the records made available. At each stage
Resident resisted the inspections, and provided slightly more records that before the prior
inspection. After four such efforts, the Petition followed.
In response to the Petition, Respondent asserted that, although records either required
by law and/or expected to exist, were not produced, there was nothing further.
A principal issue of dispute between the parties is that between February 17, 2017 and
August 31, 2017, Respondent Little Orchard Business Park Owners Association purported to
fine Petitioner the aggregate sum of $45,600. Imposition of fines requires that the Association
have properly adopted a fine schedule, and properly published it to the owners. The records
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS: 8received did not confirm either occured.
Petitioner achieved a litigation objective in causing Respondent to confirm that there was
nothing further in existence, and then under oath, as to records expected or required to exist.
But for the Petition that fact would never have been certain, particularly given the recalcitrance
on the part of the Association. This is not of minor import as Petitioner asserts the Board has
acted beyond its authority based upon the records of the Association.
THE FEES CLAIMED LACK EVIDENTIARY SUPPORT AND ARE EXCESSIVE
In support of the fees claim, Movant submits two declarations with attached invoices.
Neither lays a foundation for the attached invoices.
An invoice itself is hearsay, and is not admissible to prove the work or services reflected
in the invoice were performed, unless a foundational showing is made of an exception to the
hearsay rule. Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33,
43, 69 Cal. Rptr. 561; Copenbarger v. Morris Cerullo World Evangelism, Inc. (2018) 29 Cal.
App. 5th 1, 13, 239 Cal. Rptr. 3d 838, 848; Gorman v. Tassajara Development Corp. (2009)
178 Cal.App.4th 44, 87, 100 Cal. Rptr. 3d 152; In re Leanna W. (2004) 120 Cal.App.4th 735,
743, 15 Cal. Rptr. 3d 616.
Nor is there a foundation for the attached records.
The proponent is required to establish:
eThe affiant or declarant is the duly authorized custodian of the records, or otherwise
qualified to make the statements in the affidavit or declaration (Evid C §1561(a)(1));
©The invoice was made as a record of an act, condition, or event and is offered to prove
the occurrence of that act, condition, or event (Evid C §12771);
@The invoice was made in the regular course of business (Evid C §1271(a));
@The invoice was made at or near the time the act, condition, or event occurred (Evid
C §1271(b));
©The invoice was prepared in a certain way (mode of preparation) and is identified as
the writing it purports to be (Evid C §1271(c)):
I
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 9©The invoice is trustworthy, given the sources of information for the writing, and the
method and time of its preparation (Evid C §1271(d)); see Sanchez v Hillerich & Bradsby Co.
(2002) 104 CA4th 73, 720, 128 CR2d 529.
None of the foregoing was established as to any of the proffered invoices.
There is no foundation that such work was actually performed, incurred, or paid for.
There is no foundation that such billings are reasonable and necessary. See Copenbarger v.
Morris Cerullo World Evangelism, Inc., 29 Cal. App. 5th 1, 13, 239 Cal. Rptr. 3d 838, 848, 2018
Cal.; Bermudez v. Ciolek (2015) 237 Cal. App. 4th 1311, 1337, 188 Cal. Rptr. 3d 820, 841.
The declaration of Norman La Force is quite odd.
Nowhere in the declaration of Mr. La Force is it mentioned that the office of Christian B
Green is the house counsel office for CNA insurance.
The attachments to his declaration are referred to as “Billing Statement By Employee”.
The declaration then vaguely refers to Mr. LaForce working for his “employer” without saying
whom his employer is and refers to “charges” but does not say what “charges” may mean.
There is nothing that says that anyone incurred these charges.
The silence as to the foundation of the attached “Billing Statement By Employee” likely
results because, Mr. LaForce, as an employee of CNA is not qualified to lay such a foundation
that this is either an invoice or a bill, because it is not.
There are numerous billing entries for a “paralegal.” While work of a paralegal may be
recoverable, here there is no support in the declaration for these billings that there was, in fact,
a paralegal performing services (billings total $1,260.00).
There are billing entries for interest extraneous to “enforce(ment)’ ..., by any proceeding
at law or in equity.
This includes: insurance company issues, obtaining insurance coverage (billings total
$598.00); communication with insurance adjuster re status (billings total $400.00)*; fee
agreement issues (billings total $28.50).
I
3As CNA house counsel, this would be an internal communication.
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS. 10SO mem IN DH BF WN
om YN DA KF WN
bone by YY YN NN NY =
oI DA A BF BH FS
The billings in general appear excessive. The Points and Authorities in opposition to the
petition were 13 [pages in length and did not reflect any extraordinary legal research, In fact,
only one case is cited. The declarations in opposition were short and simple.
As to those items that can be objectively reviewed, typical is: a .3 billing to prepare a
substitution of attorneys form, e.g., a claim that it took 18 minutes to prepare a substitution
form. It does not take more than 2 or 3 minutes to prepare a substitution form; .3 to prepare
a cover letter to the court enclosing a court order. It does not take more than 2 to 5 minutes
to prepare a cover letter; 1.2 to prepare an agreed to stipulation to continue a hearing date.
It does not take more than 10 to 15 minutes to prepare a stipulation to continue a hearing date.
Of course, assuming we get that far, the trial court also has expertise of its own in the
matter of the value of legal services performed. Melnyk v. Robledo (1976) 64 CA3d 618, 623,
134 CR 602.
Areasonable value for the total opposition to the petition would be no more that $7,500.
Dated: TEL OL
Dennis Kollenborn, Esq.
Attorney for Julie T. Nguyen
POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 11
Preview
A BF BN DENNIS KOLLENBORN State Bar No. 43928 150 Almaden Boulevard Suite 950 San Jose, California 95113 Telephone: (408) 286-2221 Attorney for Petitioner Julie T. Nguyen IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA JULIE T. NGUYEN, Vv. Petitioner, LITTLE ORCHARD BUSINESS PARK OWNERS ASSOCIATION, Respondent. Action No. 17CV317898 POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS Date: July 19, 2019 Time 9:00 A.M. Dept: 10 POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTSTABLE OF CONTENTS NO BASIS FOR CONTRACTUAL FEES ASSERTED IN THE UNDERLYING PROCEEDING ..... 00... cece cette e eee e nee eee THE PROVISION IN THE DECLARATION DOES NOT SUPPORT THE FEES REQUESTED ...... 6... teen eens POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS,SO mem ND WH BF WwW WY TABLE OF AUTHORITIES Cases Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal. App. 4th 464, 491-492, 54 Cal. Rptr. 2d 888,904 ................... Bermudez v. Ciolek (2015) 237 Cal. App. 4th 1311, 1337, 188 Cal. Rptr. 3d 820, 841. ..............0.. Boggs v. North American B. & M. Co. (1937) 20 Cal.App.2d 316, 319, 66 P.2d 1253 6... eects Carwash of America-PO v. Windswept Ventures No. | (2002) 97 Cal.App.4th 540, 543-544 [118 Cal. Rptr. 2d 536] ................0 00a Casella v. SouthWest Dealer Services, Inc. (2007)157 Cal. App. 4th 1127, 1162, 69 Cal. Rptr. 3d 445,47 «2.0.2... eee eee Copenbarger v. Morris Cerullo World Evangelism, Inc. (2018) 29 Cal. App. 5th 1, 13, 239 Cal. Rptr. 3d 838, 848 6.0.0... eee eee Cruz v Ayromloo (2007) 155 CA4th 1270 2... n eens Fairchild v. Park (2001) 90 Cal.App.4th 919, 930-931 [109 Cal. Rptr. 2d 442 .......... 0.0... First Nationwide Bank v. Mountain Cascade, Inc. (2000) 77 Cal.App.4th 871, 878 [92 Cal. Rptr.2d 145] 2.0... .. eee eee eee Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 87, 100 Cal. Rptr. 3d 152 2.0.0... eee Greenfield v. Superior Court (2003) 106 Cal.App.4th 743, 748 [131 Cal. Rptr. 2d 179] (Greenfield) ............... Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal. App. 4th 1330, 1341-1342, 25 Cal. Rptr. 3d 82, 90-91............... In re Leanna W. (2004) 120 Cal.App.4th 735, 743, 15 Cal. Rptr. 3d 616 2.0.0.0... 0... cece eee ee Johnsone v Siegel (2000) 84 CA4th 1087 26... e eee e ee een anne Josephson v. Sup. (1963) 219 Cal. App: 3d 354, 361-362, 33 Cal.Rptr.196...................0000. Marriage of Nassimi (2016) 3 Cal. App. Sth 667, 698, 207 Cal. Rptr. 3d 764... 0... eee eee Matter of Application of Clark (1914) 24 Cal.App. 389, 394-395 [141 P. 831 26... POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS iiMelnyk v. Robledo (1976) 64 CA3d 618, 623, 134 CR 602 ©... cette 11 Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 43, 69 Cal. Rptr. 561.0... eee eee 9 People v. American Sur. Ins. Co. (1999) 75 Cal.App.4th 719, 726, 89 Cal.Rptr.2d 422,427 .......... 0... cee eee 2 People v. Yartz (2005) 37 Cal.4th 529, 538 [36 Cal. Rptr. 3d 328, 123 P.3d 604] (Yartz).............. 7 Ripley v. Pappadopoulos (1994) 23 Cal. App. 4th 1616, 1627, 28 Cal. Rptr. 2d 878, 884 ................05. 3,4 Robert L. Cloud & Associates, Inc. v. Mikesell [*1281] (1999) 69 Cal.App.4th 1141, 1153-1154, 82 Cal. Rptr. 2d 143 .....0. 2... eee 3 Roden v. Amerisource Bergen Corp. (2007) 155 Cal. App. 4th 1548, 1578, 67 Cal. Rptr. 3d 26.0.0... .. eee eee 8 Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 673 [17 Cal. Rptr. 3d 427] ............... cee eee 7 Sanchez v Hillerich & Bradsby Co. (2002) 104 CA4th 73, 720, 128 CR2d 529.1... ete 10 Santisas v. Goodin (1998) 17 Cal.4th 599, 615, 71 Cal. Rptr. 2d 830, 951 P.2d 399 ........ eee 5 Stockwell v. Lindeman (1964) 229 Cal. App. 2d 750, 755, 40 Cal. Rptr. 555, 558.6... eee 7 Statutes Civil Code ADIT cece e tenes 1,3, 5,7 ATA7(D)(1) cece e ent eee teen eens 1 Code of Civil Procedure 2M sci are eG LRT EEE HERE uw ewe em ewe em eee eee em ema 6,7 22 gic sccm om nie nin mie ete He min OO CD EMO EEN OEM EM EEE O EES 6 23 nee ee ee ee teen eens 6,7 BF oon i 16 E dE AE BEE AM HE RE ARORA PRT H ASEM EME REE IIR Ewin oemimens 7 25 simu te eR ETE Ma Re TEM Ra em E aA Em OMe meme meme em ememem ene aes 7 1010 een nee b ene cnet eens 2 POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS iii1033.5 (b) occ cent teen e eens Corporation Code W271) eee eee e es V2TA(D) cece eee eee bebe beeen ees T2TA(C) ccc eee eee eee eee eee e ees VTA) cece eee eee ccc cece eee e ees 1561(a)(1) eee cece eee e ee eeeeeeeeees Rules of Court B.1110(8) occ cece cee eeteveeeeteveeeeteeeteereees BAM2G) occ c cece cect cece vee eveeeeseeveeerees POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTSSCO em ND HW PB Ww NY BACKGROUND Petitioner Julie T. Nguyen is the owner of certain real property located at 1859 Little Orchard St, San Jose, California 95125-1034, Santa Clara County, Assessor's Parcel Number 455-40-020, Legal Description: Lot Number: 2; Subdivision: Little Orchard Business Park; Unit: 5A; TRACT: 7849; City/Muni/Twnsp: San Jose; Map: Or J692 pg 1217 (hereafter referred to as “the 1859 Little Orchard St Street Property” or “the Unit”). In turn, that certain real property is a unit identified on the plan in a commercial common interest/condominium development (hereafter referred to as “the Property”) governed by an association. Respondent Little Orchard Business Park Owners Association, is a California non-profit mutual benefit corporation and the governing body of the association (hereafter referred to as “the Association’). Petitioner Julie T. Nguyen presented a Petition for writ of mandate seeking to obtain records from Respondent Little Orchard Business Park Owners Association. The Court denied the writ. Respondent seeks attorney fees and expenses under the CCRs, which Respondent asserts to include, 8.1 Enforcement: The Association, or any owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and charges now or hereafter imposed by the provisions of this Declaration, the Articles and the Bylaws, and in such action shall be entitled to recover reasonable attorneys' fees as are ordered by Court. Failure by the Association or by any owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. THE PRESENTED MOTION The motion seeks an order awarding fees and costs in the amount of $25,040.50, purportedly pursuant to Civil Code Section 1717 and Code of Civil Procedure Section 1033.5. The Court, on notice and motion by a party, may determine who is the party prevailing on the contract, whether or not the suit proceeds to final judgment. Civ. Code §1717(b)(1); Rule 3.1702 also requires a determination of the prevailing party. I POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 1oO mem ND HW BF WN CCP § 1010 and Rule 3.1110(a) require a notice of motion to state what is being sought in by way of the motion, “If new matter were permitted in the actual hearing of the motion, a notice of motion would be reduced to little purpose other than to advise the time and place of hearing.” Josephson v. Sup. Ct. (1963) 219 Cal.App.2d 354, 361-362, 33 Cal.Rptr. 196. The notice of motion must state in the first paragraph exactly what relief is sought and why. CCP § 1010; CRC 3.1110(a); see People v. American Sur. Ins. Co. (1999) 75 Cal.App.4th 719, 726, 89 Cal.Rptr.2d 422, 427. The motion must contain the following: identity of the party or parties bringing the motion; identity of the parties to whom it is addressed; a brief statement of the basis for the motion and the relief sought. CRC 3.1112(d). The motion does not specify as to whom the fees and costs are sought against. The motion states that the motion is made upon the grounds that Respondent is a prevailing party. However, this is apparently assumed, as the motion does not seek to have Respondent be found a prevailing party. NO BASIS FOR CONTRACTUAL FEES ASSERTED IN THE UNDERLYING PROCEEDING As noted above, the matter proceeded as a Petition for Writ of Mandate. The prayer for the petition included, “2. For attorney's fees pursuant to Corporations Code 8331 and 8337;” The Petition did not seek contractual attorneys fees. No answer to the Petition was ever filed." "A party on whom an alternative writ or notice of motion has been served may make a return by demurrer, verified answer, or both. See Code Civ. Proc. §§1089, 1105. Points and Authorities or “ an unverified legal brief” is not the required response. Agricultural Labor Relations Bd. v. Superior Court, Agricultural Labor Relations Bd. v. Superior Court (2016) 4 Cal. App. Sth 675, 682, 209 Cal. Rptr. 3d 243. The submission of “a return with a verified answer or demurrer is not a technicality, but is an integral and critical step in the procedure for determining the merit of a petition for extraordinary relief.” Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1085, 151 Cal. Rptr. 3d 526. If the return does not properly controvert the Petition, as here, all facts plead in the petition are accepted as true. Agricultural Labor Relations Bd. v. Superior Court, supra; Dorsey v. Superior Court (2015) 241 Cal. App. 4th 583, 589, 193 Cal. Rptr. 3d 834; Bank of America, N.A. v. Superior Court (2013) 212 Cal. App. 4th 1076, 1084-1085, 151 Cal. Rptr. 3d 526; Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal. App. 4th 365, 372 n.5, 36 Cal. Rptr. 3d 31; see also Witkin Civil Procedure 5" ed, Extraordinary Writs, Section 195. POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 2The CC&R provision, “Section 8.1 Enforcement,” at issue was never presented to the Court until the present motion was filed. While it is true that a fees motion under Section 1717 is presented post judgment as a form of a cost, the matter must still have been “on a contract, where the contract specifically provides that attorney's fees and costs...” See Cal Civ Code § 1717. A matter cannot be “on a contract, where the contract specifically provides that attorney’s fees and costs...” that was never presented in any form during the course of the matter, attached to any pleading or proved up during the course of the matter. Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal. App. 4th 464, 491-492, 54 Cal. Rptr. 2d 888, 904; Ripley v. Pappadopoulos (1994) 23 Cal. App. 4th 1616, 1627, 28 Cal. Rptr. 2d 878, 884. Recovery of costs provided by contract must be specially pleaded and proven at trial, and not awarded posttrial as was done here. (Arntz, supra, 47 Cal.App.4th at p. 491; First Nationwide Bank v. Mountain Cascade, Inc. (2000) 77 Cal.App.4th 871, 878-879 [92 Cal. Rptr. 2d 145].) “[T]he proper interpretation of a contractual agreement for shifting litigation costs is a question of fact that ‘turns on the intentions of the contracting parties.’ ” (First Nationwide Bank, supra, at p. 879.) Accordingly, “the issue must be submitted to the trier of fact for resolution pursuant to a prejudgment evidentiary proceeding, not a summary postjudgment motion.” (Ibid.) Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal. App. 4th 1330, 1341-1342, 25 Cal. Rptr. 3d 82, 90-91. THE MOTION IMPROPERLY SEEKS COSTS AND EXPENSES The attachment to the motion includes a claim of $722.00 expenses incurred for a reporters transcript of the court hearing of 1-3-2019, as well as FedEx charges of $2.60 and efiling fees of $63.00 There is a distinction between fees, costs and expenses. Fees may be claimed if allowed by contract, as discussed elsewhere. Expenses may be claimed if allowed by contract. Carwash of America-PO v. Windswept Ventures No. | (2002) 97 Cal.App.4th 540, 543-544 [118 Cal. Rptr. 2d 536]; Fairchild v. Park (2001) 90 Cal.App.4th 919, 930-931 [109 Cal. Rptr. 2d 442]; First Nationwide Bank v. Mountain Cascade, Inc. (2000) 77 Cal.App.4th 871, 878 [92 Cal. Rptr. 2d 145]; Robert L. Cloud & Associates, Inc. v. Mikesell [*1281] (1999) 69 Cal.App.4th 1141, 1153-1154, 82 Cal. Rptr. POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 32d 143; Ripley v. Pappadopoulos, supra, 23 Cal.App.4th at pp. 1622-1628. Costs may be claimed if allowed by statute under CCP Section 1033.5, and maybe if allowed by contract.” The provision at issue does not provide for expenses or costs. To the extent Movant seeks costs, this motion is untimely and the wrong procedure. Rule 3.1700 is entitled “Prejudgment costs.” Rule 3.1700(a)(1), which addresses “[t]rial costs,” states that “[a] prevailing party who claims costs must serve and file a memorandum of costs” within 15 days after notice of entry of judgment, or within 180 days after entry of judgment, whichever is first. Rule 3.1700(b) establishes a procedure for contesting those costs by means of a motion to tax costs. See Rule 3.1700(b)(1). Neither subdivision (b) nor subdivision (c) of Rule 3.1702 mentions a memorandum of costs. The sole express reference to a memorandum of costs in rule 3.1702 appears in subdivision (e), addressing “Attorney's fees fixed by formula”: “If a party is entitled to statutory or contractual attorney's fees that are fixed without the necessity of a court determination, the fees must be claimed in the memorandum of costs.” Moreover, hearing transcripts cannot be claimed as costs unless the transcripts were ordered by the Court. Cal Code Civ Proc § 1033.5 (b) includes, ...”The following items are not allowable as costs, except when expressly authorized by law:...(5) Transcripts of court proceedings not ordered by the court.” NO EFFORT TO DISTINGUISH CLAIMS There are two issues as to the nature of the claims presented. First, the Court needs to determine if a contract claim was presented, and if so, an allocation would be required. > There is a split as to whether costs can be claimed if allowed by contract, but not under CCP Section 1033.5. See Bussey v. Affleck (1990) 225 Cal. App. 3d 1162, 1164 [275 Cal. Rptr. 646] [Fees of experts could be awarded under a contract providing for an award of " ‘all costs and expenses of collection including reasonable attorneys' fees.'"]; but see Ripley v. Papadopoulos (1994) 23 Cal. App. 4th 1616, 1626-1627 [28 Cal. Rptr. 2d 878] [disagreeing with Bussey and holding that a general contract provision for recovery of attorney fees and costs must be construed in light of Code of Civil Procedure section 1033.5]. POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 4Cm NDA HW RF BN NN NY N YN N NN DY ec ND A A BF HB NH SK SS Movant does not address either of these issues. The matter proceeded upon a Petition for Writ of Mandate. The Petition sought “1. The court issue an order compelling Respondent Little Orchard Business Park Owners Association to make available to Petitioner in written form, for inspection and the making of extracts therefrom: The Articles and Bylaws (original and as amended to date); The membership register, accounting books and records and minutes of proceedings of the members and the board and committees of the board; The record of all the members’ names, addresses and voting rights; 2. For attorney's fees pursuant to Corporations Code 8331 and 8337;” The allegations include that “Respondent Little Orchard Business Park Owners Association is at least subject to certain governing documents including, inter alia, a Little Orchard Business Park Enabling Declaration recorded at Santa Clara County Recorders Office on May 15, 1986 as Document Number 8784174, attached hereto as EXHIBIT A (hereafter referred to as “the Declaration” or “CC&Rs”), as corrected and amended and Bylaws, attached hereto as EXHIBIT B (hereafter referred to asthe Bylaws”) as well as the laws of the State of California governing non-profit mutual benefit corporations and common interest/condominium developments.” However, the presented Bylaws have not been authenticated, and the enabling declaration makes no reference to obligations to produce records. The moving Points and Authorities, and the responsive Points and Authorities, principally addressed inspection rights under the Corp. Code including under §§8330, 8333, and 7160. The Points and Authorities also referred the Bylaws, however, the Bylaws do not provide for the same expansive rights as under the Corporation Code, and do not include rights as to all of the records sought by the Petition. A critical limitation to the recovery of fees and costs under Section 1717 is that it normally pertains only to contract claims. "If an action asserts both contract and tort or other noncontract claims, section 1717 applies only to attorney fees incurred to litigate the contract claims. [Citation.]" Santisas v. Goodin (1998) 17 Cal.4th 599, 615, 71 Cal. Rptr. 2d 830, 951 POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 5P.2d 399. The language of the provision at issue here is not expansive and allows for fees only for enforcement of the contract documents. The provision does include recognized expansive language such as “arising out of” of “in connection with.” See Johnsone v Siegel (2000) 84 CA4th 1087, Cruz v Ayromloo (2007) 155 CA4th 1270. There is no assertion by Movant that the legal theories were so intertwined that it would be impracticable, if not impossible, to separate the attorney's time into compensable and noncompensable units. Instead, the issue is simply ignored As such, the motion fails for making no effort to allocate what may be provided for under the CC&RS and what is not provided for. THE PROVISION IN THE DECLARATION DOES NOT SUPPORT THE FEES REQUESTED As noted above, the provision at issue provides, 8.1 Enforcement: The Association, or any owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and charges now or hereafter imposed by the provisions of this Declaration, the Articles and the Bylaws, and in such action shall be entitled to recover reasonable attorneys' fees as are ordered by Court. Failure by the Association or by any owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. The provision at issue starts narrowly with allowance for enforcement by way of any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and charges now or hereafter imposed by the provisions of this Declaration, the Articles and the Bylaws, and also allows even more narrowly for fees in such “action.” See Casella _v. SouthWest Dealer Services, Inc. (2007)157 Cal. App. 4th 1127, 1162, 69 Cal. Rptr. 3d 445, 47. Allowing for fees in an action is more limited that the language allowing for enforcement in any proceeding at law or in equity. A mandate proceeding is not an “action.” All court matters are divided into actions and special proceedings. Code Civ. Proc., §§ 21, 22, 23. POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 6Som ND HW BF WN Amandate is a “special proceeding, i.e., a proceeding authorized by statute that affords new rights and remedies that may be judicially enforced, but that is neither an action at law nor a suit in equity. Code Civ. Proc., §§ 21, 23; Greenfield v. Superior Court (2003) 106 Cal.App.4th 743, 748 [131 Cal. Rptr. 2d 179] (Greenfield); Boggs v. North American B. & M. Co. (1937) 20 Cal.App.2d 316, 319, 66 P.2d 1253. The more specific term “civil action,” has the same meaning as “civil suit.” People v. Yartz (2005) 37 Cal.4th 529, 538 [36 Cal. Rptr. 3d 328, 123 P.3d 604] (Yartz). An action refers to an action that arises out of an obligation or an injury and is prosecuted for the first or second purpose listed in Code of Civil Procedure section 22, but not for the third purpose. Code Civ. Proc., §§ 24, 25; see Matter of Application of Clark (1914) 24 Cal. App. 389, 394-395 [141 P. 831. Thus, the term “civil action” “covers the following: (1) [S]uits at law or in equity. [Citation.] (2) Certain adversary proceedings that take place during a probate proceeding. [Citation.] (3) Actions for declaratory relief. [Citations.] (4) Actions for divorce (dissolution of marriage). [Citation.].”” Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 673 [17 Cal. Rptr. 3d 427]. The provision at issue does not include special proceedings as to fees. In addition, the relevant provision includes “...and in such action shall be entitled to recover reasonable attorneys' fees as are ordered by Court.” This is not the same thing as “and in such action shall be entitled to recover reasonable attorneys' fees.” The inclusion of the additional fees “as are ordered by Court” modifies the provision such that the provision is not mandatory. The added language does not fix any obligation, and, instead, to the contrary, such fees are only to be payable if the court so decides to order them. In effect, the term states that whatever the Court may order is acceptable. See Stockwell v. Lindeman (1964) 229 Cal. App. 2d 750, 755, 40 Cal. Rptr. 555, 558 (Similar language in loan agreement). MOVANT IS NOT A PREVAILING PARTY CC §1717 includes, "(b)(1) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 7SFO mem IN DH FB WN 12 14 prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section. Among other things, the Court has discretion to determine that neither party prevailed. Marriage of Nassimi (2016) 3 Cal. App. 5th 667, 698, 207 Cal. Rptr. 3d 764. When a contract does not define “prevailing party,” the Court may base its attorney's fees decision on pragmatic definition of extent to which each party realized litigation objectives, or whether, on balance, neither party prevailed sufficiently to justify an attorney’s fees award Roden v. Amerisource Bergen Corp. (2007) 155 Cal. App. 4th 1548, 1578, 67 Cal. Rptr. 3d 26. First, as noted above, Movant does not seek any determination to be a prevailing party. The sole nod as to the issue, is a single conclusionary sentence in the moving points that Respondent opposed the Petition and that the court ruled in Respondent's favor [Points and Authorities pg 3, line 12]. No Statement of Decision was requested or issued. The Judgment includes that the Court finds there was “insufficient showing that the respondent had refused to produce documents that existed or which were in the possession of the respondent.” In fact, extensive evidence was presented by Petitioner that a series of inspections were requested and thwarted. At the conclusion of the series of inspections, a large number of records either required by law and/or expected to exist, were never made available for inspection. This included substantial gaps in the records made available. At each stage Resident resisted the inspections, and provided slightly more records that before the prior inspection. After four such efforts, the Petition followed. In response to the Petition, Respondent asserted that, although records either required by law and/or expected to exist, were not produced, there was nothing further. A principal issue of dispute between the parties is that between February 17, 2017 and August 31, 2017, Respondent Little Orchard Business Park Owners Association purported to fine Petitioner the aggregate sum of $45,600. Imposition of fines requires that the Association have properly adopted a fine schedule, and properly published it to the owners. The records POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS: 8received did not confirm either occured. Petitioner achieved a litigation objective in causing Respondent to confirm that there was nothing further in existence, and then under oath, as to records expected or required to exist. But for the Petition that fact would never have been certain, particularly given the recalcitrance on the part of the Association. This is not of minor import as Petitioner asserts the Board has acted beyond its authority based upon the records of the Association. THE FEES CLAIMED LACK EVIDENTIARY SUPPORT AND ARE EXCESSIVE In support of the fees claim, Movant submits two declarations with attached invoices. Neither lays a foundation for the attached invoices. An invoice itself is hearsay, and is not admissible to prove the work or services reflected in the invoice were performed, unless a foundational showing is made of an exception to the hearsay rule. Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 43, 69 Cal. Rptr. 561; Copenbarger v. Morris Cerullo World Evangelism, Inc. (2018) 29 Cal. App. 5th 1, 13, 239 Cal. Rptr. 3d 838, 848; Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 87, 100 Cal. Rptr. 3d 152; In re Leanna W. (2004) 120 Cal.App.4th 735, 743, 15 Cal. Rptr. 3d 616. Nor is there a foundation for the attached records. The proponent is required to establish: eThe affiant or declarant is the duly authorized custodian of the records, or otherwise qualified to make the statements in the affidavit or declaration (Evid C §1561(a)(1)); ©The invoice was made as a record of an act, condition, or event and is offered to prove the occurrence of that act, condition, or event (Evid C §12771); @The invoice was made in the regular course of business (Evid C §1271(a)); @The invoice was made at or near the time the act, condition, or event occurred (Evid C §1271(b)); ©The invoice was prepared in a certain way (mode of preparation) and is identified as the writing it purports to be (Evid C §1271(c)): I POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 9©The invoice is trustworthy, given the sources of information for the writing, and the method and time of its preparation (Evid C §1271(d)); see Sanchez v Hillerich & Bradsby Co. (2002) 104 CA4th 73, 720, 128 CR2d 529. None of the foregoing was established as to any of the proffered invoices. There is no foundation that such work was actually performed, incurred, or paid for. There is no foundation that such billings are reasonable and necessary. See Copenbarger v. Morris Cerullo World Evangelism, Inc., 29 Cal. App. 5th 1, 13, 239 Cal. Rptr. 3d 838, 848, 2018 Cal.; Bermudez v. Ciolek (2015) 237 Cal. App. 4th 1311, 1337, 188 Cal. Rptr. 3d 820, 841. The declaration of Norman La Force is quite odd. Nowhere in the declaration of Mr. La Force is it mentioned that the office of Christian B Green is the house counsel office for CNA insurance. The attachments to his declaration are referred to as “Billing Statement By Employee”. The declaration then vaguely refers to Mr. LaForce working for his “employer” without saying whom his employer is and refers to “charges” but does not say what “charges” may mean. There is nothing that says that anyone incurred these charges. The silence as to the foundation of the attached “Billing Statement By Employee” likely results because, Mr. LaForce, as an employee of CNA is not qualified to lay such a foundation that this is either an invoice or a bill, because it is not. There are numerous billing entries for a “paralegal.” While work of a paralegal may be recoverable, here there is no support in the declaration for these billings that there was, in fact, a paralegal performing services (billings total $1,260.00). There are billing entries for interest extraneous to “enforce(ment)’ ..., by any proceeding at law or in equity. This includes: insurance company issues, obtaining insurance coverage (billings total $598.00); communication with insurance adjuster re status (billings total $400.00)*; fee agreement issues (billings total $28.50). I 3As CNA house counsel, this would be an internal communication. POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS. 10SO mem IN DH BF WN om YN DA KF WN bone by YY YN NN NY = oI DA A BF BH FS The billings in general appear excessive. The Points and Authorities in opposition to the petition were 13 [pages in length and did not reflect any extraordinary legal research, In fact, only one case is cited. The declarations in opposition were short and simple. As to those items that can be objectively reviewed, typical is: a .3 billing to prepare a substitution of attorneys form, e.g., a claim that it took 18 minutes to prepare a substitution form. It does not take more than 2 or 3 minutes to prepare a substitution form; .3 to prepare a cover letter to the court enclosing a court order. It does not take more than 2 to 5 minutes to prepare a cover letter; 1.2 to prepare an agreed to stipulation to continue a hearing date. It does not take more than 10 to 15 minutes to prepare a stipulation to continue a hearing date. Of course, assuming we get that far, the trial court also has expertise of its own in the matter of the value of legal services performed. Melnyk v. Robledo (1976) 64 CA3d 618, 623, 134 CR 602. Areasonable value for the total opposition to the petition would be no more that $7,500. Dated: TEL OL Dennis Kollenborn, Esq. Attorney for Julie T. Nguyen POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ATTORNEYS FEES AND COSTS 11